Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1887-11-02

There is nothing in this case which requires
us to determine any other question than the
right of the city to prevent tippllng- houses,
dram-shops and bar-rooms-a Guestionsentirely
different from that sought to be raised by peti.
TONER arising out of the ownership and manu-
facture of wines, etc.
Not only is there nothing in the provisions of
the ordinance before us inconsistent with gen.
eral laws. but its provisions are in harmony
with the authority expressly vested in cities of
the sixth class by Section 500 of the Municipal
Cooperation Act of March Is, 1888, which pro-
vides that the Board of Trustees shall have
power " to pass all ordinances not in conflict
with the Constitution and laws of this State or
of the United States" This Act of March 13,
epce to the provisions of Section 5, Article XI.
OF the Constitution.
In cases of this kind we have nothing to do
with the policy of the law. That is matter for
the Legislature. In determining the question
whether there is , conflict We look only at the
law itself, which is the best and only evidence
of the policy of the State on the question be
fore u.s.
The petitioner is remanded to custody.
PATTERSON, J.
We concur: McKinstry, j.; Thornton, j.;
Temple, j.; searls, C. j.; Sharpstein, J.
DISSENTING OPINION.
| dissent: There is no pretense that the orii-
nance III q@estton is the result of the exercise OF
the power to regulate, or to raise revenue for
municipal purposes by license or tax. It's clear
purpose is practically to destroy the ownership
the State, aye recognized and dealt with as prop
erty as fully as is flour, or bacon, or sugar. One
of them-wine-is the product of a leading in
dustry. 1t provides that these commodities shall
not be sold or given away at any place within
the bounds OF the municipality. The power TO
sell or d spose of property gives to it its main
valuable quality; and to take away this quality
is to, substantially, confiScate il. Without dis
cussing the many other grave constitutional
questions which the case presents-the discussion
OF which other duties preventS-I will content
myself with saying here, that, in my opinion, the
ordinance is - in conflict with general laws.
The text ola State Constitution is necessarily
terse and concise, and it may be assumed that
Its trainers IN stating rule or principle used as
few words as would fairly express the idea in
tended. The evident intention of the clause
above quoted was to prevent any confusion OF
diseord, or incongruity between the general
legislation of the State in its broad sovereign
capacity and the special legislation of its de-
pendent municipalities. An ordinance, there
fore, may be in conflict with general laws, al.
though the latter may not in express terms for
bid the passage of the former. Whatever is in
consistent or inharmonious or at variance with
or contradictory of or repugnant to the general
policy OF the State as expressed i'll its general
laws, is "in conflict" with those laws And
that there is conflict in this sense between an
ordinance which substantially declares that
certain commodities shall not be property, and
general laws o. the State which not only i'm
pliedly, but expressly, declare that they are
property, seems to be too clear for discussion
From the first 10 the last session of the Legislat
ure OF this State wines and liquors have been
recognized as property, and as a legitimate
source of revenue. The policy of the State has
been to encourage. not to cripple. their manu-
facture. Prior to the new Constitution the State
usually licensed their sale. Since the new Con
Sttutlon was adopted that source of revenue
mas heen turned over to the counties. The
county government bill, which is a general
law expressly authorizes the county govern
ments to license such sale: and the city of Pasa.
| dena is not authorized by its charter to suppress
It. The State, too, has provided for =" State
Board of Niticulture" and appropriated to its
use large sum of money. Among the du,
ties prescribed for this Board is the selecting
OF persons competent to lecture and imparl
instruction . in methods of culture, pruning
tertllizing, fermenting, distilling and rectify.
ing 1t is also provided that the Board OF
Regents of the University OF California shall
provide for special instruction 90 in the arts and
sciences pertaining to viticulture, the theory and
practice of fermentation. diStillaton and rectii
cation, and the management OF cellars, to be
illustrated, etc; also for an examination and
report upon the woods of the State ''pIocurable
for cooperage = also for an analysis of soils,
vines, branches and grapes And, further.
more, the Legislature, at its recent session,
passed an Act expressly providing for the
sale OF wine and for the prevention of fraud
IN the manufacture and sale thereof.
that the State Controller shall furnish printed
| labels to be put on bottles and packages " in
which wine is Sold (See. ~ section pro
vides that 50 in all sales and contracts for sale
production or delivery of products defined in
this Act, such products, in the absence of a
written agreement to the contrary, shall be
presumed etc. Section provides that lit is
desired and required that all and every grower
manufacture, trader, handler or bother of Cali
fornia wine, when selling or putting up for sale
any California wine shall plainly
stencil, brand" etc. The Act is quite a long
one, and provides in detail for the sale OF wine
and the prevention of its adulteration. Now
suppose that the Legislature had passed another
Act providing that neither spirituous, vinous
nor malt liquors should be sold or given away
at any place, is there any sensible man who
would not say that the two Acts were. - in con
tiict''? But the provision above supposed has
been put into an ordinance of the city of Pasa-
demand is not the conflict clearly there?
The notion of local self-government was never
intended to be pushed to the extreme of disre
garding and defeating the will of the Legisla-
ture which speaks and acts for the state.
In my opinion the petitioner should be dis.
charged. MCFARLAND J.